QUEENS BENCH DIVISION
NEUTRAL CITATION NO.  EWHC 1761 (ADMIN)
Strand, London, WC2A 2LL
B e f o r e :
|I - CD PUBLISHING LTD
|- and -
THE SECRETARY OF STATE
Jonathan Crow and Steven Kovats (instructed by Treasury Solicitors) for the Defendant
Jane Collier appeared for the Information Commissioner.
Hearing dates : 20 May 2003
Crown Copyright ©
Mr Justice Maurice Kay:
"(1) Subject to regulation 112 (2) above [which concerns the availability of sufficient copies] the registration officer shall supply on request and on payment of a fee calculated in accordance with regulation 111 above copies of a relevant document to a credit reference agency which is registered under Part III of the Consumer Credit Act 1974 (by virtue of section 147 of that Act) and which is carrying on the business of providing credit reference services.
(2) For the purposes of regulation 112(3) above, the relevant restrictions apply except for the purposes set out in paragraph (3) below.
(3) Those purposes are –
(a) vetting applications for credit or applications that can result in the giving of credit or the giving of any guarantee, indemnity or assurance in relation to the giving of credit;
(b) meeting any obligation contained in the Money Laundering Regulations 1993, the Money Laundering Regulations 2001 or any rules made pursuant to section 146 of the Financial Services and Markets Act 2000; and
(c) statistical analysis of credit risk assessment in a case where no person whose details are included in the full register is referred to by name or necessary implication.
(4) The registration officer may require a credit reference agency to provide such evidence that it is carrying on the business of providing credit reference services as he shall reasonably require.
(5) In this regulation –
'application for credit' includes an application to refinance or reschedule an existing credit agreement; 'credit' includes a cash loan and any other form of financial accommodation; and 'credit reference service' means the furnishing of persons with information relevant to the financial standing of individuals, which is information collected by the person furnishing it for the purpose of so furnishing it."
Regulation 112 prohibits any person in an organisation from using the full register for purposes for which the organisation itself would not be able to use it.
The present challenge
Ground 1: consultation
"……details of the new regime will be contained in regulations which will be drafted once the Bill has received Royal Assent. We are still in discussion with those, like yourselves, who have an interest in these regulations and the views expressed will be taken into account in the drafting process."
On 20 April, in reply to a further letter from I-CD, Mr. O'Brien said:
"We are still trying to work out exactly how the regulations will work in practice and consequently how they will be framed. But they will be published in draft form and no doubt you will wish to comment further at that stage."
According to George Scott, a barrister then employed by I-CD, he had a telephone conversation with a civil servant (who is now deceased) in October 2000 in which
"he informed me that the most appropriate time for me to convey my comments was when the draft regulations were published. However, he told me that the draft regulations would be sent to us in due course. He assured me that the claimant would be sent a copy of these as and when they were published and that we could take it from there. He made no reference to the Departmental website or to the Stationary Office at any stage."
(1) After Robertson (No 1) there was no prospect that the inevitable amendment of the 2001 Regulations would result in a significantly wider provision for the sale of the full register than the one that materialised.
(2) Consultation directly with I-CD would not and could not have changed that reality.
(3) There was no legal obligation of direct consultation specifically with I-CD at any time after Robertson (No 1) and the consultation exercise which took place in May and June 2002 was lawfully devised and executed.
(4) If I-CD had made representations – whether or not it knew of the consultation exercise – they would have been considered but, realistically, they could not have achieved what they might have sought, either in relation to the content of the Regulations or in the form of any advice as to compliance with them.
(5)Such was the culpability of I-CD during the relevant period when it buried its corporate head in the sand that, as a matter of discretion, I would have been disinclined to grant relief at this stage even if it had established a breach of duty to consult.
Accordingly, this ground of challenge must fail. A further issue was canvassed before me, namely delay. Having considered the matter substantively (and, in one respect, in relation to discretion), and having found against I-CD, it is not strictly necessary for me to deal with the issue of delay. However, I shall do so briefly. These proceedings were issued on 10 October 2002 – almost three months after the 2002 Regulations were made on 18 July. Mr. Crow submits that that was not prompt in all the circumstances of this case. Miss Morris submits that time could not have started to run until 18 July (rather than, say, the publication of the consultation document) and that, because I-CD knew nothing of the Regulations until 2 September, I should consider promptness only from that date. I am unpersuaded by the second of those submissions for the reasons of culpability (and credibility) to which I have referred. Miss Morris then submits that, in the light of dicta in R (Burkett) v. Hammersmith and Fulham London Borough Council  1 WLR 1593 (per Lord Steyn at p 1611, Lord Hope of Craighead, at p 1612, 1614) I should take the plunge and find the requirement of promptness (CPR Part 54.5) to be non-compliant with Article 6 of the ECHR because of its uncertainty. However, I am not disposed to do so. Mr. Crow pertinently observes that the House of Lords, in Burkett did not consider Lam v. United Kingdom, an admissibility decision of the Strasbourg Court on 5 July 2001 (41671/98), in which the contention that the promptness requirement breached Article 6 was declared inadmissible. The present case is certainly not the one to come to a contrary conclusion.
Ground 2: irrationality
Ground 3: reasons
"No reasons, or no adequate reasons have been given by the Secretary of State for these two aberrant aspects of the Regulation – the failure to consult with the business so affected by them and the creation of an exclusionary monopoly which may serve to defeat one of the fundamental justifications for the Regulations."
Having rejected the premise – "aberrant aspects" – I can find nothing in this ground of challenge. There was no unlawful failure to consult, nor was there a creation of an exclusionary monopoly. Once again, discretion and delay would stand in I-CD's way in any event.
"I-CD wishes to continue offering identity verification services in the context of credit referencing and anti-money laundering legislation utilising the full electoral register. It recognises that in order to conform with the new electoral register regulations it needs fundamentally to change the way in which it offers this type of service."
(1) it has a clear picture of the course of conduct contemplated;
(2) the declaration relates to prospective rather than existing conduct;
(3) it is a declaration of non-criminality rather than of criminality;
(4) criminal proceedings are not in existence;
(5) the declaration would not otherwise usurp the functions of the criminal courts;
(6) the High Court is an appropriate forum for deciding the issues raised; and
(7) the declaration will avoid the claimant having to go to considerable expense in relation to a course of conduct which might expose it and others to criminal liability.
It is therefore necessary for me to examine the authorities which are said to support these submissions.
" Donaldson J thought [the Court] could [grant a declaration] but did not grant it as he thought that the….scheme was a lottery and an unlawful competition. The Court of Appeal, holding that it was neither, granted it. That decision, if it stands, will form a precedent for the Commercial Court and other civil courts usurping the functions of the criminal courts. Publishers may be tempted to seek declarations that what they propose to publish is not a criminal libel or blasphemous or obscene. If in this case where the declaration sought was not in respect of future conduct but in respect of what had already taken place, it could properly be granted, I see no reason why in such cases a declaration as to future conduct could not be granted. If this were to happen, then the position could be much the same as it was before the passing of Fox's Libel Act 1792 when judges, not juries, decided whether a libel was criminal, blasphemous or obscene."
He added (at p 742):
"……it is not necessary in this case to decide whether a declaration as to the criminality or otherwise of future conduct can ever properly be made by a civil court. In my opinion it would be a very exceptional case in which it would be right to do so. In my opinion it cannot be right to grant a declaration that an accused is innocent after a prosecution has started."
Lord Scarman agreed with Viscount Dilhorne as did Lord Edmund-Davies. Lord Fraser of Tullybelton delivered a concurring speech without expressly addressing future conduct. Lord Lane considered that there was jurisdiction to grant a declaration "in these circumstances" (p 750) but added (at p 752):
"Counsel appearing before your Lordships' House were unable to find any case in which a defendant in criminal proceedings already properly and not vexatiously instituted had applied for a declaration that the criminal proceedings were unfounded or based on a misapprehension as to the true meaning of the criminal statute. I do not find that dearth of authority surprising. It would be strange if a defendant to proper criminal proceedings were able to pre-empt those proceedings by application to a judge of the High Court.
It seems to me that, on analysis, the ratio of Imperial Tobacco on this issue is that the court will not grant a declaration in relation to past or existing conduct, particularly if criminal proceedings have already commenced. However, the case also contains very strong dicta to the effect that it would be a "very exceptional case" in which a declaration would be granted in relation to the criminality of future conduct.
"Declarations are being sought that certain conduct is criminal, not that certain conduct is not criminal. The declarations are addressed to future distributions of the booklet and it is a real possibility that if a declaration is granted, but despite this further distributions take place, there could be a criminal prosecution. This makes it particularly important that this court should bear in mind the danger of usurping the jurisdiction of the criminal courts…..While of course recognising the advantages of the application of the law being clear in relation to future conduct, it would only be proper to grant a declaration if it is clearly established that there is no risk of it treating conduct as criminal which is not clearly in contravention of the criminal law."
The Attorney General's application for a declaration failed. I take from that authority that the door was left open for a declaration as to the prospective criminality of future conduct but the ratio is not distinguishable from Viscount Dilhorne's "very exceptional case".
"Normally, the seeking of a declaration in a civil case about the lawfulness of future conduct will not be permitted. But in truly exceptional cases the court may allow such a claim to proceed."
He then considered possible criteria of "truly exceptional cases", including the absence of fact-sensitivity and the presence of a cogent public or individual interest. He accepted (para 24) that the jurisdiction "is in no way limited to life and death issues…..it may be a matter of constitutional importance". Lord Rodger of Earlsferry said (at para 56):
"The authorities do not spell out what constitutes a very exceptional case for these purposes. In ordinary cases people must take and act on their own legal advice. So, broadly speaking, a very exceptional case must be one where, unusually, the interests of justice require that the particular claimant should be able to obtain the ruling of the civil court before embarking on, or continuing with, a particular course of conduct which, on one view, might expose him to the risk of prosecution."